Tag Archives: Oregon aviation lawyer

Bird Strikes and Aviation: Facts and Fault

From Scott Brooksby’s article, “Bird Strikes and Aviation: Facts and Fault” published in the American Bar Association’s Mass Torts Practice Points on December 7, 2015:

Bird strikes are an increasing danger to commercial aviation and result in death and serious injury to passengers and crew, and soaring costs for aircraft damage.

According to Boeing, the first bird strike was recorded by the Wright Brothers in 1905. Now, aircraft-wildlife strikes are the second leading cause of aviation-related fatalities. Globally these strikes have killed over 400 people and destroyed more than 420 aircraft. In addition to birds, wildlife strikes have been reported involving horses, antelope, moose and many other mammals.

Potential Liability for Airport Operators
The USDA’s Airport Wildlife Hazards Program plays a leading role in the supervision and management of aircraft-wildlife strikes. The USDA notes that airport managers must exercise due diligence in managing wildlife hazards to avoid serious liability issues. The U.S. Code of Federal Regulations requires that Part 139-certificated airports experiencing hazardous wildlife conditions as defined in 14 C.F.R. section 139.337 to conduct formal wildlife hazard assessments. The certificated airports must develop wildlife hazard management plans as part of the certification standards. Airports are required to employ professional biologists trained in wildlife-hazard management. (14 C.F.R. § 139.337 and FAA Advisory Circular 150/5200-36). Failure to comply with the regulations can give rise to liability for airport operators.

Data Sampling
According to Boeing, the relevant wildlife-strike facts include:

1. More than 219 people have been killed as a result of bird strikes since 1988.

2. Between 1990 and 2009, bird and small and large mammal strikes have cost U.S. civil aviation $650 million per year.

3. The Air Force sustains about $333 million dollars in damage per year due to bird strikes.

4. About 5,000 bird strikes were reported by the Air Force in 2012.

5. About 9,000 bird and other wildlife strikes were reported for U.S civil aircraft in 2009.

6. The FAA has identified 482 species of birds involved in strikes from 1990-2012.

Factors Contributing to the Rise in Bird Strikes

1. The North American non-migratory Canada goose population increased from 1 million birds in 1990 to 4 million birds in 2009. Concentrations are particularly high at JFK airport and surrounding regions, with the ample grass and wetlands, but populations of various sizes are found near airports across the country.

2. A 12-pound Canada goose struck by an airplane moving at 150 miles per hour during takeoff generates the kinetic energy of a 1000 pound weight dropped from a height of ten feet.

3. Nesting populations of bald eagles increased from 400 pairs in 1970 to 13,000 pairs in 2010. Between 1990 and 2009, 125 bald eagle strikes were reported. The body mass of a bald eagle is 9.1 pounds for males and 11.8 pounds for females.

4. Finally, the population of European starlings is now the second most prevalent bird in America, numbering over 150 million. Often called “silver bullets,” they fly at high speed and have a body density that is 27 percent greater than gulls.

Prevention
In January 2009, U.S. Airways Flight 1549 landed on the Hudson River after multiple Canada goose strikes in flight.  As a result, New York City Mayor Michael Bloombergdeclared war on geese. Suzanne Goldenberg, New York Declares War on Geese to Prevent Airport Bird Strikes, The Guardian (June 12, 2009). A mayoral steering committee gave the go-ahead to the USDA to cull geese in a 450-mile area encompassing JFK, LaGuardia, and Newark airports. Other means of control include:

1. Each summer, teams of USDA goose catchers capture geese that, in the molting condition cannot fly, including offspring that are then taken to slaughterhouses and dispatched. Between 2009 and 2010, 2911 geese were killed.

2. The USDA reports that 80 percent of Canada geese are resident, and remain in place, rather than migrate. The government and airport operators strongly advocate for the culling of non-migratory birds.

3. Discouraging nesting and grazing.

4. Letting grass grow taller, planting unpalatable grasses, reducing standing rainwater, and oiling eggs to prevent hatching.

5. Firing pyrotechnics and propane cannons.

Conclusion
Given the rapid growth of non-migratory birds at some of the busiest airports, and the dramatic increase in flights, it may only be a matter of time before a catastrophic bird or wildlife strike will happen again, with more disastrous results than the extraordinary landing of Flight 1549 on the Hudson.

Scott Brooksby featured as moderator at prominent aviation conference

Oregon aviation lawyer Scott Brooksby will be featured as a moderator at the 2016 American Bar Association Aviation Litigation National Institute in New York, New York, entitled “Birds, Pets, Lasers, Stowaways, and Other Hot Topics in Aviation”.  The conference will take place at the University Club of New York.

Scott Brooksby will join other distinguished faculty at this prominent aviation conference, which will highlight current developments in aviation law including:

• Birds, pets, lasers, stowaways, and other hot topics
• Recent developments in case law in aviation and space law
• Defenses available in war zone tort actions
• Ethics—The preparation and testimony of witnesses during an aviation trial
• Improving aviation safety
• Defining the boundaries of federal preemption in aviation litigation
• Handling Air Traffic Control issues and aviation mishaps in air crash cases
• Carrier liability surrounding the failure to divert due to medical circumstances
• Liability issues surrounding foreign maintenance of American aircraft

Much of the firm’s practice is devoted to aviation law, and we are one of the few firms in Oregon with aviation trial experience.  Scott Brooksby leads our aviation practice, devoting a substantial amount of his time and practice to aviation-related matters.  Scott served as local counsel for one of the largest aviation manufacturers in the world in a nine-week trial in Oregon state court.  The trial involved product liability issues and concerned a helicopter crash that resulted in burns, permanent injuries, and multiple deaths.  Mr. Brooksby is on the aviation subcommittee of the American Bar Association’s Mass Torts section, and serves as a speaker on aviation matters at aviation law conferences across the nation.

Aircraft Wheel-Well Stowaways: Can Security Breaches Lead to Mass Torts?

Businesswoman standing in airplane engine

From Scott Brooksby’s article, “Aircraft Wheel-Well Stowaways: Can Security Breaches Lead to Mass Torts?”, published in the American Bar Association’s Mass Torts, Practice Points on October 9, 2015:

In recent years, wheel-well stowaways have received increasing media attention and public interest. Statistics on the manner of death and the factors that keep stowaways alive are not precise.

Most of these incidents happen for refugee and humanitarian reasons. However, assuming the physiological obstacles of hypothermia and hypoxia are overcome, one major question remains: What legal implications are raised if a stowaway with destructive intent caused a major tragedy?

Usually, a stowaway jumps into an aircraft by hanging on to the airliner’s landing gear as the plane takes off, and the force of the wind can easily make a stowaway fall to his or her death. The overwhelming majority of stowaways are young males. Because stowaways must stay within the landing-gear area, they face other risks too, such as being crushed in a confined space when the gear retracts, falling when the plane is landing, or dying from the heat produced by the engines of the aircraft.

The Data
The following introduction is based on FAA data.

The first recorded case of an aircraft stowaway occurred on June 13, 1929. The Bernard monoplane Oiseau Canari, piloted by Frenchmen Assollant Lefevre, had trouble taking off in spite of its powerful Hispano Suiza engine. The crew later discovered the cause of the problem: a stowaway on board. Despite the overload, the plane landed in Spain after 22 hours of flight.

Physiological threats for a stowaway are minimal at altitudes up to 8,000 feet, but at higher altitudes, reduced atmospheric pressure and partial pressure of oxygen may have deleterious effects. At all cruising altitudes, the partial pressure of oxygen in a wheel well cannot sustain consciousness. Additionally, at altitudes of about 20,000 feet, stowaways may develop decompression sickness.

All of the scientific research suggests that, after takeoff, a stowaway faces two life-threatening conditions during flight: hypoxia and hypothermia. In 1993, the fatality of a 19-year old who stowed away in the wheel well of a plane bound from Columbia to JFK International Airport was one of the 13 wheel-well stowaway flights documented in a report by the U.S. Federal Aviation Administration (FAA), Civil Aeromedical Institute (CAMI), and Flight Safety Foundation (FSF) as having frozen to death.

According to the FAA, from 1947 to 2014 there have been 94 flights involving 105 people who stowed away worldwide. Of those 105 people, 80 died and 25 survived. The 25 people who survived represent a 23.8 percent survival rate.

In 2014 as discussed above, a 16-year old California boy jumped a fence at San Jose International Airport and squeezed into the wheel well of a flight bound for Maui, where he emerged five hours later, in good health. Experts surmised that the teen’s youth could be an advantage, as the brains of young people adapt more easily to hypothermia and hypoxia, for reasons that are not completely understood.

Similarly, a 21-year old Indonesian man hid in the wheel well of a Garuda Indonesia flight from Sumatra to Jakarta.

Some experts also believe that motivation for some (younger) stowaways to escape is prompted by politically dangerous homeland conditions that compel their departure under desperate circumstances. That can affect their brains by producing a “virtual hibernative state,” where their bodies become temporarily more adaptable to trauma.

Possible Outcomes
There may be a number of consequences of security breaches by aircraft wheel-well stowaways and their on-board actions, despite the present physiological obstacles. Among these include:

  • widespread concern about security at public, airline, security provider, airport, and government levels
  • direct action by, influence on, payment for, or extortion by extremists determined to cause a catastrophe through the use of an explosive device or alteration of a plane’s existing safety features
  • government-levied fines for airlines, airports, private security companies, local police, and federal agents based on security breaches
  • increased security measures imposed by airport, airline, local, state, and federal authorities
  • lawsuits by agencies, airlines, or security companies against the indigent stowaways are unlikely, although deportation is possible

With the proliferation of wheel-well stowaways, it is likely only a matter of time until a serious mass-tort tragedy occurs.

Scott Brooksby is co-planning the 2016 ABA Aviation Litigation National Institute

Scott Brooksby will be involved in planning the American Bar Association’s 2016 22nd Annual National Institute on Aviation Litigation in New York, New York.

This prominent, annual conference features seasoned aviation lawyers who present and educate on a variety of aviation litigation topics.  Scott is on the aviation subcommittee of the American Bar Association’s Mass Torts section.

Scott Brooksby has experience representing airlines, aviation insurers, aviation product manufacturers, and airplane owners.  Scott has handled a broad variety of aviation law matters, including personal injury defense; product liability defense litigation; contract and lease drafting; contract negotiation and disputes; and general aviation commercial litigation.

Much of Scott’s practice is devoted to aviation law, and Olson Brooksby is one of the few firms in Oregon with aviation trial experience.  Scott Brooksby leads the firm’s aviation practice, devoting a substantial amount of his time and practice to aviation-related matters.

Scott served as local counsel for one of the largest aviation manufacturers in the world in a nine-week trial in Oregon state court.  The trial involved product liability issues and concerned a helicopter crash that resulted in burns, permanent injuries, and multiple deaths.

While Olson Brooksby’s specialized aviation practice is headquartered in Portland, Oregon, the nature of the firm’s practice often takes its attorneys to various other geographical locations, particularly for investigations, witness interviews, and depositions.

Scott is experienced with a broad range of aviation law topics, and is familiar with allegations concerning: mechanical malfunctions due to airframe or component defects; improper repair or maintenance; improper weight and balance; weather; piloting and human factors; instruments and avionics; air traffic control; and even issues relating to bird strikes and lasers.